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Journal articles on the topic 'Function of criminal law'
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1
ĆUJIĆ, MIODRAG. "CRIMINAL ASSOCIATION IN INTERNATIONAL CRIMINAL LAW." Kultura polisa, no. 44 (March 8, 2021): 23–35. http://dx.doi.org/10.51738/kpolisa2021.18.1r.1.02.
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The criminal association was a criminal offense of the Joint Plan and Conspiracy, or a special form of Crime against Peace, which was highlighted as such in the Nuremberg and Tokyo trials. In the recent practice of international criminal courts, this institute is used in a certain way, but its function is often subordinated to political abuses. By labeling certain political regimes as a “criminal association” by the so-called international political elites are provided with a wide margin of maneuver to justify their “humanitarian interventions” which are the consequence of a common criminal goal. From the middle of the 20th century until today, it is possible to identify violations of international law that occurred as a result of the activities of a criminal association, which continues with increased intensity. If the covert activities of real criminal associations continue, the main outcome will not be the achievement of world peace, but hegemony. In order to prevent this tendency, it is necessary to redefine the place of the Criminal Association in international criminal law, to point out the permanent cases of their actions, their subjects and the ways in which these same subjects avoid responsibility.
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Corda, Alessandro. "The Transformational Function of the Criminal Law." New Criminal Law Review 23, no. 4 (2020): 584–635. http://dx.doi.org/10.1525/nclr.2020.23.4.584.
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It is often maintained that the criminal law is supposed to intervene only when a certain social norm has become so significant within a given society to justify its protection by means of penal sanctions. The criminal law is thus thought to mirror a hierarchy of values it neither shapes nor contributes to building; rather, it is required to stand at least one step behind social change. This article challenges this view, presenting a normative account that contributes to the debate on what is permissible for the criminal law to try to achieve. It does so by defining and theoretically substantiating the “transformational function” of the criminal law. The term refers to the use of criminalization and punishment to change, rather than merely reflect, social norms, attitudes, and beliefs alongside, and combined with, non-penal policy-making tools in contested domains. Four operational conditions of legitimacy are identified and discussed. Within such operational boundaries, this article contends that the criminal law can play an important role in promoting social change—i.e., the establishment of new norms and values—as well as helping the coagulation of norms, attitudes, and beliefs not yet fully entrenched within the societal body.
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Kaija, Sandra. "THE SEPARATION OF CRIMINAL PROCEDURAL FUNCTIONS." Administrative and Criminal Justice 3, no. 80 (September 30, 2017): 32. http://dx.doi.org/10.17770/acj.v3i80.2785.
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The term criminal procedural function has historically been used by scientists. In order to identify primary issues in procedural functions, the competition principle was analyzed. This strengthened such important issues as separation of prosecution and court functions, parties’ equality, independence of courts etc. Therefore, the concept of three concept functions – prosecution, defence and adjudication – was developed in criminal proceedings. In the context of the Criminal Procedure Law having taking effect, this term was included into the law, including the principle of separation of criminal procedural functions.The aim of this paper is to offer the insight into interpretation of the concept of the criminal procedural function with the special focus on specific issues in function separation. Section 17 of Criminal Procedure Law determines the function of control of restrictions of human rights in a pre-trail. The functions of prosecution, defence and adjudication do not determine their priority over all other criminal procedural functions. These functions are claimed to be separate and therefore cannot be applied to the same person.
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Darley, John M., Kevin M. Carlsmith, and Paul H. Robinson. "The Ex Ante Function of the Criminal Law." Law & Society Review 35, no. 1 (2001): 165. http://dx.doi.org/10.2307/3185389.
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박종근. "Risk Society and Function Change of Criminal Law." Korean Journal of Comparative Criminal Law 12, no. 2 (December 2010): 231–50. http://dx.doi.org/10.23894/kjccl.2010.12.2.010.
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Joyce, Daniel. "The Historical Function of International Criminal Trials: Re-thinking International Criminal Law." Nordic Journal of International Law 73, no. 4 (2004): 461–84. http://dx.doi.org/10.1163/1571810043083397.
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AbstractThe establishment of the International Criminal Court provides an opportunity to re-think international criminal law and procedure, and to develop a more coherent theory of international criminal justice. This article argues that increasingly the demands placed upon international criminal trials go beyond the process of securing convictions. There is an increasing expectation that such trials will contribute to broader processes of social recovery and reconciliation. Claims are also made for their having a pedagogical and documentary role. To this end, the author proposes the recognition of an historical function of international criminal trials. This is suggested as best forming part of the variety of policy rationales which underpin the processes of international criminal law. It is conceded that overemphasising the role of history could be dangerous and infringe upon the rights of the accused, but it is argued that underemphasising the role of theory and history is unsatisfactory. The article concludes that recognition of an historical function for international criminal trials involves tensions, but will provide a framework and rationale for a more narrative-based and victimfocused system of international criminal law which might provide an important discursive beginning for victims and affected communities, whilst balancing due process concerns.
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Kaija, S. "Issues in separation of criminal procedural functions." SHS Web of Conferences 40 (2018): 01010. http://dx.doi.org/10.1051/shsconf/20184001010.
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The term ‘criminal procedural function’. has historically been used by scientists. In order to identify primary issues in procedural functions, the competition principle was analyzed. This strengthened such important issues as separation of prosecution and court functions, parties’ equality, independence of courts etc. Therefore, the concept of three concept functions – prosecution, defence and adjudication - was developed in criminal proceedings. In the context of the Criminal Procedure Law having taking effect, this term was included into the law, including the principle of separation of criminal procedural functions. The aim of this paper is to offer the insight into interpretation of the concept of the criminal procedural function with the special focus on specific issues in function separation. Section 17 of Criminal Procedure Law determines the function of control of restrictions of human rights in a pre-trail. The functions of prosecution, defence and adjudication do not determine their priority over all other criminal procedural functions. These functions are claimed to be separate and therefore cannot be applied to the same person. This paper examines the equivalence of procedural functions as one of the most fair of the court elements. In the end, key conclusions are summarized.
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Fletcher, George P. "The Nature and Function of Criminal Theory." California Law Review 88, no. 3 (May 2000): 687. http://dx.doi.org/10.2307/3481188.
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Stojanovic, Zoran. "Criminal law and mental illness." Sociologija 57, no. 2 (2015): 219–30. http://dx.doi.org/10.2298/soc1502219s.
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The paper deals with the problem of criminal law reaction to behavior of mentally ill, insane offenders who violate or threaten the criminal law protected values. To the preliminary question of whether the criminal reaction is generally justified in regard to quasi-criminal acts of mentally ill persons (which are not criminal in the true sense because they lack mens rea which is a constituent element of each offense), the answer is still yes. There are no other, more appropriate forms of social control, or other legal mechanisms that could more effectively than the criminal law, while respecting the safeguards that have become indispensable in criminal law, protect important goods of the individual or society from the harmful behavior of mentally ill persons. Although the entire criminal law is based on guilt and the subjective attitude of the offender towards the criminal offense for which he is exposed to the social-ethical reprimand, it is excluded in case of mentally ill, insane offenders and implementation of appropriate security measures. Capabilities of criminal law in performing a protective function relative to mentally ill offenders are certainly more modest than in case of perpetrators who can be held accountable. The entire general prevention (whether positive or negative) underlying protective function of criminal law, is almost inconceivable in relation to potential offenders who are mentally ill. Available options are reduced to detention and psychiatric treatment of the mentally ill offender. The application of security measures to insane, mentally ill persons is limited, therefore, mainly to certain aspects of special prevention. Even exercising social control through criminal law differs, significantly, depending on whether we talk about incompetent, mentally ill persons or those who have normal mental abilities.
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Simović, Marina, and Dragan Jovašević. "Executive Criminal Law / Izvršno krivično pravo." Годишњак факултета правних наука - АПЕИРОН 4, no. 4 (July 30, 2014): 132. http://dx.doi.org/10.7251/gfp1404132s.
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Executive criminal law or the right of execution of criminal sanctions is the third constituent part of the criminal proceedings which logically follows after the substantive criminal law and formal criminal procedural law. Only the proceedings of execution of types and measures of criminal sanctions prescribed by the law and pronounced in court proceedings give the purpose to its prescription, and that is suppression and prevention of criminality. Since this is a new branch of positive criminal (penal) law, the authors, on the basis of domestic and foreign legal theory, have analyzedat this paper the concept, subject, title, function, sources, characteristics, legal nature and location of this branch of criminal law.
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Husak, Douglas, and Paul H. Robinson. "The Function and Structure of the Substantive Criminal Law." Law and Philosophy 18, no. 1 (January 1999): 85. http://dx.doi.org/10.2307/3505065.
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Schoenfeld, C. G. "Crime, Punishment, and the Criminal Law: A Psychoanalytic Summary and Analysis." Journal of Psychiatry & Law 21, no. 3 (September 1993): 337–61. http://dx.doi.org/10.1177/009318539302100304.
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This article seeks to summarize certain basic conclusions reached during a 30-year attempt to apply psychoanalytic psychology to crime, punishment, and the criminal law. Psychoanalytically derived discoveries about man's instinctual aggressiveness, and innate ways of trying to control it, are presented first. Then the conclusion is advanced that a main function of law is to help to remedy man's inability to control his aggression sufficiently so as to make life in civilized societies possible. An extended historical discussion of the development of the common law and the criminal law follows, leading to the conclusion that the criminal law seeks both to block and to express man's aggressive urgencies. Then, in a psychoanalytically oriented section devoted to criminals and criminality, the conclusion is emphasized that the criminal law's ultimate purpose has been not so much to counter successfully the threats posed by those who break the law, but rather to meet the emotional needs of the law-abiding members of society.
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Bozic, Vanda, and Zeljko Nikac. "Criminal Law Framework to Combat Criminal Offenses of Corruption in Croatia and Serbia." INTERNATIONAL JOURNAL OF MANAGEMENT SCIENCE AND BUSINESS ADMINISTRATION 6, no. 2 (2020): 19–23. http://dx.doi.org/10.18775/ijmsba.1849-5664-5419.2014.62.1002.
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Corruption today is the first-rate problem of human society and the international community. In transitional countries such as Croatia and Serbia, offenses of corruption are very pronounced, especially since legal and institutional frameworks for combating corruption have not been developing for a long time. The paper deals with the notion, characteristics, and dimensions of corruption in the function of discussion on criminal offenses of corruption in these countries. It gives a brief overview of the major international legal sources that Croatia and Serbia have adopted and incorporated into national legislation. The central part of the work is devoted to national legal framework for the fight against corruptive acts, a comparative legal representation, and the most common criminal offenses were pointed out in more detailed. Concluding considerations are devoted to some de lege ferenda proposals to suppress criminal offenses of corruption.
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Zuhri, Muhammad Fakhruddin. "Forgiveness of Judges: Local Wisdom in the Concept of National Criminal Law." Walisongo Law Review (Walrev) 1, no. 1 (April 30, 2019): 85. http://dx.doi.org/10.21580/walrev.2019.1.1.4757.
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Criminal law, as an instrument of guarding public order, has two functions. The first one is as general function to regulate life and to organize procedures in society. The second one is as particular function to protect legal interests from crime by giving criminal punishment as sanctions for the perpetrators. Conceptually, forgiveness of the judge emerges to modify rigid legal certainty towards flexible legal certainty. This departs from several cases that have actually fulfilled the formulation of criminal offenses, but their actions are not feasible to be sentenced. Therefore, in the concept of the National criminal law, the Draft of Criminal Code (RKUHP) makes a new formula containing local wisdoms that regulate the possibility of forgiveness of the judge to several cases that are improperly being convicted. This paper focuses on the concept of forgiveness of the judge that cannot be separated from the local wisdom values, including religious values and legal wisdoms living in society.
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Kruessmann, Thomas. "Criminal Law and Human Rights - Some Examples from the Emergence of European Criminal Law." Russian Journal of Criminology 14, no. 5 (November 20, 2020): 745–57. http://dx.doi.org/10.17150/2500-4255.2020.14(5).745-757.
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Criminal law is often described as the field of law that expresses the strongest national characteristics of a given jurisdiction and is the least amenable to change. Naturally, social rules providing some kind of penalty when violated have existed throughout the history of mankind. In Europe, the current understanding of criminal law has been shaped by Enlightenment thought, the ideas of human rights, liberalism and finally the national movements which led, inter alia, to the famous codifications of criminal law of the 19th century. In Russia, criminal law has certainly (not been isolated from the developments that took place in 19th century Europe. For example, the abolition of corporal punishment is but one good marker of humanisation. But compared to Europe, codified criminal law in Russia has been much less understood as the magna charta of the offender (Franz von Liszt), eventually leading to the study of human rights in criminal law. Rather, it has been viewed as the expression of the Tsars unfettered power to mete out punishment, - a line of thinking which indicates the continuing difficulty in Russian criminal law doctrine to accept limitations on the power of the legislator to criminalize. This paper will not deal with Russian doctrinal approaches to criminal law in a direct way. Instead, its purpose is to demonstrate the European Unions (EUs) current thinking on the effects that human rights have on the development of criminal law. As of today, criminal law is under a variety of influences among which the changing understanding of human rights is a very important one. In the Western world, there is a large amount of literature dealing with human rights and criminal law in general1 [1; 2], and it is hardly possible to come to an overall systematization. To be sure, there are parts of criminal law which have experienced very little change in light of human rights. One central tenet of human rights, for example, is the equality of men2 (in a pre-modern reading to include also women) which leads to the criminalization of slavery, slave trade, forced labor and trafficking in human beings. The smuggling of humans, on the other hand, is a much more controversial topic due to the fact that states show a strong desire to criminalize irregular migration. Another pillar of human rights is the human right to property3 which informs a whole range of criminal law provisions for violations of the right to property on land (theft, robbery, etc.) and on water (piracy). By comparison, the right to life is a more difficult concept. Human rights are behind the global drive for abolishing the death penalty4, but a number of other life-related issues are determined less by human rights than by religious and ethical views, such as the criminalization of abortion, aiding and abetting suicide, and euthanasia. Finally, a number of human rights are experiencing a very lively debate, e.g. freedom of speech5 [3] and freedom of religion, consequently there is also a high impact on the development of criminal law. European criminal law, understood as the total of the harmonized national criminal law systems of the EU Member states, offers a good example to study the effects of human rights. In the literature, there is the argument that changes in the understanding of human rights can lead both to criminalization and to de-criminalization. This has also been described as the «sword» function of human rights (using human rights to call for criminalization) and the «shield» function (using human rights law to call for limits to the use of criminal law and even de-criminalization) [1]. Both functions can be observed in a nutshell when analyzing the European criminal law that has emerged in the course of the last decade. For Russia, this article represents a (hopefully timely) contribution to the still nascent discussion on the effects of human rights on criminal law. Despite the Preamble to the newly adopted Constitution of the Russian Federation (RF) which affirms the role of human rights, Article 15 (4) Constitution RF limits the direct impact of human rights law to the universally accepted norms and principles of international law as well as to treaties concluded by the RF. The Constitution therefore appears to be closing the door to cutting-edge developments in international human rights law which are still not universally accepted.
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Khilyuta, V. V. "Limits of Autonomy in Criminal Law." Lex Russica, no. 4 (May 2, 2019): 117–28. http://dx.doi.org/10.17803/1729-5920.2019.149.4.117-128.
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The article raises a question about the autonomy of criminal law. Various aspects of the doctrinal understanding of the limits of criminal law and its scope in relation to the positive branches of legislation are considered. The author in the context of the existence of the concept of autonomy (independence) of criminal law regulation questions the limits of judicial interpretation. In this context, antagonistic views on the limits of the mechanism of criminal law regulation are considered. Particular attention is given to the fundamental premise that the functional autonomy of criminal law generates not only a protective component, but also a regulatory function, and the law enforcement officer has the right to decide a particular case, based on concepts borrowed from other branches of law, but it can give them a different meaning and significance than the one they are endowed with in these positive (regulating specific social relations) sectors. The author comes to the conclusion that an autonomous interpretation of foreign industry features and concepts of regulatory legislation is scarcely credible. If a criminal law is to protect economic relations arising from the static and dynamic nature of objects of civil rights and their turnover from criminal encroachments, its subordination to the provisions of regulatory legislation is inevitable. The determinism here should be manifested precisely in accordance with the description of the signs of the crime to the provisions of regulatory norms. As a result, the autonomy of criminal law may create uncertainty about the content of the rule of law itself and allow for unlimited discretion in its enforcement. In this formulation of the issue, the autonomy of criminal law regulation is replaced by a very different approach — the autonomy of the judicial interpretation of criminal law. However, in this case there is a substitution of concepts, and the autonomy of criminal law is associated not so much with the regulatory function as with the law enforcement of criminal law.
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Snarski, Tomasz. "Why criminal law needs a philosophy of law?" Polish Journal of Criminology 4, no. 1 (October 3, 2018): 1–10. http://dx.doi.org/10.5604/01.3001.0012.5964.
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The article discusses the necessity of the presence of legal philosophy in penal sciences, i. a. criminal law, as a necessary basis for the creation and functioning of a system of good criminal law. The author, referring to selected views on the essence of the criminal law, indicates that the philosophy of law is a binder of the entire criminal law system, serving the implementation of its goals and functions, and guaranteeing that criminal law serves the service of the human person. The philosophy of criminal law applies in many respects, especially in justifying the basic principles of criminal law and in connection with the axiology of protection of human rights and the Constitution.
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Amielańczyk, Krzysztof. "Purposes and Functions of Public Punishment in Roman Law in the Perspective of Justinian's Codification." Studia Prawnicze KUL, no. 4 (December 31, 2019): 21–37. http://dx.doi.org/10.31743/sp.10605.
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The objectives and functions of the punishment for a public offence (crimen) had already been discussed by M. Tullius Cicero, Seneca the Younger, or Aulus Gellius many centuries before Emperor Justinian. According to their statements, the Romans distinguished in principle all the types of punitive functions known today: deterrence (special and general prevention), reprisal (retaliation), elimination (protection of society against the perpetrator), and even the rehabilitation
(educative) function. The emergence of the imperial judiciary extra ordinem in criminal matters could have been conducive to performance of various functions assigned to various penalties, along with the possibilities offered by the discretionary power of judicial decisions. However, when reading Emperor Justinian’s Constitutio Tanta and the numerous accounts from the Roman jurists included in his codification, contained in Book 48 of the Digest, one may be convinced that the function of paramount importance for the emperor was to deter potential perpetrators by means of severe penalties, including notably the death penalty. The educational function was rather marginal. The primary objective of the imperial criminal policy was the ruthlessly severe punishing for criminal offences (severitas, atrocitas) and the implementation of the postulate of inevitability of criminal responsibility.
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Kopylova, E. A. "The Expertise Function of Amicus Curiae in International Criminal Justice." Moscow Journal of International Law, no. 3 (December 26, 2020): 115–29. http://dx.doi.org/10.24833/0869-0049-2020-3-115-129.
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INTRODUCTION. While abroad over the past decades both comprehensive research and publications touching on individual aspects of amicus curiae in international law have been edited, it garnered only very little scholarly attention in Russian scientific literature. The frequency of its use and the nature of its impact on international judicial and quasi-judicial proceedings vary among branches of international law. This article considers one of the functions that an amicus curiae may perform in international criminal proceedings – the function of expertise.MATERIALS AND METHODS. The article is based on the existing volume of scientific knowledge in different branches of international law, such as law of international treaties, international criminal law, law of international organizations, human rights law, international economic law, history of international law and others. The research is based on the conclusions and inferences achieved mainly in the foreign doctrine of international law including publications of this year, due to the low degree of development of the topic in Russian literature. The empirical basis of the research is formed by international legal acts, internal acts of international criminal tribunals, materials of proceedings relating to interstate disputes, international advisory proceedings, practice of international criminal courts. The methodology used is a combination of general scientific methods of cognition (methods of analysis and synthesis, induction and deduction, critical and dialectical) and private scientific methods typical for legal sciences (historical, comparative).RESEARCH RESULTS. International criminal courts actively rely on the amicus curiae mechanism to obtain information, both legal and factual, on issues under consideration in criminal proceedings. The admission of amicus curiae to international criminal proceedings is entirely at the discretion of the judiciary. In practice, amicus curiae applications are submitted by subjects of international law, international non-governmental organizations, natural and legal persons and professional associations.DISCUSSION AND CONCLUSIONS. Too frequent use of amicus curiae mechanism seems to be difficult to reconcile with the iura novit curia maxima. Its current practice provides fertile ground for all kinds of abuse and needs to be reviewed. In particular, the experience of the UN International Court of Justice, the International Tribunal for the Law of the Sea and the UN Commission on International Trade Law could be instructive in this regard.
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BAAZ, MIKAEL. "Dissident Voices in International Criminal Law." Leiden Journal of International Law 28, no. 3 (July 30, 2015): 673–89. http://dx.doi.org/10.1017/s0922156515000357.
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Since the end of the Cold War, societies from the former Soviet Union and others throughout Eastern Europe, Africa, Asia, and Latin America have overthrown dictators and other authoritative rulers in the hope of allowing democracy, the rule of law, and human rights. In some cases, the change has been violent and drawn out, while in other cases the change has been quick and (more or less) non-violent. Regardless of whether the change has been violent or not, a crucial question during and after transition is: In what ways should post-authoritarian and/or post-conflict societies deal with their ‘evil’ past in order to ‘enable the state itself to [once again] function as a moral agent’? This question constitutes the very core of what is known as ‘transitional justice’ (TJ).
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Slater, James. "HIV, Trust and the Criminal Law." Journal of Criminal Law 75, no. 4 (August 2011): 309–35. http://dx.doi.org/10.1350/jcla.2011.75.4.718.
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This article explores the legitimacy of criminalising nondisclosure of HIV-positive status to sexual partners. Its principal aim is to propose a new offence that criminalises such non-disclosure when it constitutes a breach of trust. In defending the proposed offence, the article argues that the criminal law has a legitimate function in penalising breach of trust when the breach causes both personal and social harm. The article also explores whether the existing offences of s. 20 of the Offences Against the Person Act 1861 and rape (s. 1 of the Sexual Offences Act 2003) are suited to criminalising non-disclosure, and concludes that they are not. The article additionally considers the arguments against the criminalisation of non-disclosure advanced by various commentators and argues that its proposed offence avoids the concerns expressed. The article concludes that the proposed offence is both a morally justified and practically realistic way of criminalising non-disclosure of HIV-positive status.
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Rahma, Ida. "TINJAUAN YURIDIS TENTANG SISTEM PERADILAN PIDANA." Al-Qadha : Jurnal Hukum Islam dan Perundang-Undangan 4, no. 1 (August 23, 2017): 34–59. http://dx.doi.org/10.32505/qadha.v4i1.175.
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The function of criminal law aims to prevent future crimes in order toprevent the occurrence of criminal countermeasures. The criminal itself is asanction or a sorrow that tells. Criminal law is a rule of law or a set of rules orlegal norms that regulate an act which is a criminal act, when an act is declared asa criminal act and set the effect (witness) given in reaction to the act that violatesthe rule of criminal law. The function of the criminal law itself is to provide acriminal to those who violate the penal law through state equipment, in order tomaintain public order. Law enforcement is the activity of harmonizingrelationships of values that are outlined in the rules and attitude of acts as a seriesof the final value of the termination to create as social enginering, maintaining andmaintaining as the social control of social interaction, whether it is a preventiveaction (preventive) ) As well as acts of eradication (repressive).
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Kremnitzer, M. "Constitutionalization of Substantive Criminal Law: A Realistic View." Israel Law Review 33, no. 3 (1999): 720–28. http://dx.doi.org/10.1017/s0021223700016125.
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The purpose of this short essay is to examine how the constitution could contribute in the area of substantive criminal law. We should distinguish between two levels: the theoretical level and the realistic level. From a theoretical point of view, a lot could be expected from judicial review. The reason is the very broad gap between the principles of criminal law and the norms and real life of criminal law. Judicial review can function as a guardian — perhaps the guardian of the principles of criminal law.To exemplify the gap between criminal law in theory and criminal law in practice, it is sufficient to mention three issues: Criminal law in theory is an instrument of last resort, but the reality of criminal law is that it is often an instrument of first resort. Secondly, in theory, the most basic principle of criminal law is the principle of legality, of prior warning, but when we read the statutory provisions of criminal law we understand that the citizen is not the real addresee of these norms. When we read case law in criminal law, we find out that real interpretation in criminal law has very little to do with prior warning.
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Peters, Rudolph. "Islamic and Secular Criminal Law in Nineteenth Century Egypt: The Role and Function of the Qadi." Islamic Law and Society 4, no. 1 (1997): 70–90. http://dx.doi.org/10.1163/1568519972599879.
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AbstractUntil the introduction of French law in 1883, Egyptian criminal law during the nineteenth century had been governed by both statute law and Islamic law. The criminal codes were enforced by administrative and judicial bodies called majālis or councils; Islamic law was applied by the qadi. In this article, I define the qadi's competence in criminal matters and analyze his role and function as revealed in the texts of the criminal codes and nineteenth-century court records preserved in Egyptian archives. I conclude that the judicial councils dealt with criminal offenses from the point of view of public order and security and that the main task of the qadi was the adjudication of private claims connected with crime. Such claims were either punitive (e.g., retribution for manslaughter, punishment for violation of a person's honor), or financial (bloodmoney, revindication of stolen property).
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Swaak-Goldman, Olivia, and Maria Nybondas. "International criminal courts round-up." Yearbook of International Humanitarian Law 6 (December 2003): 292–318. http://dx.doi.org/10.1017/s1389135900001355.
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For the International Criminal Court (ICC) 2003 was a crucial year — its first as a functioning institution. With the coming into force of its Statute in July 2002, 2003 was spent establishing the infrastructure and procedures according to which the ICC will function. The ICC also made progress in establishing its four organs: the Chambers, the Presidency, the Office of the Prosecutor and the Registry.
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Gómez-Jara Díez, Carlos. "Corporate Culpability as a Limit to the Overcriminalization of Corporate Criminal Liability: The Interplay Between Self-Regulation, Corporate Compliance, and Corporate Citizenship." New Criminal Law Review 14, no. 1 (January 1, 2011): 78–96. http://dx.doi.org/10.1525/nclr.2011.14.1.78.
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This paper argues that there is clear sign of the overcriminalization of corporate conduct in America's criminal law and procedure: regardless of the evidence of a law-abiding behavior by a good corporate citizen, the corporation will be considered guilty if a member of its organization commits a crime within the scope of authority and with the intent to benefit the corporation. The paper explains that corporate culpability may function as a limit to this current overcriminalization as it demands in corporate criminal law what is requested in individual criminal law: that despite the agent's action and intent, the principal has not exercised some kind of due diligence. In turn, if evidence of that corporate due diligence is provided, no court should declare that a corporation is guilty. Such an approach is not only consistent with the basic tenets of criminal law, but it also reflects the different rationale for holding corporations criminally liable in modern society (as opposed to the times in which corporate criminal liability was enacted). A recent example of this overcriminalization tendency was provided by the 2nd Circuit's ruling in the case United States v. Ionia Management S.A., which is briefly discussed at the end of the paper.
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Tsyvinskyi, Oleksandr. "FEATURES OF PUBLIC OFFICIAL IN CRIMINAL LAW OF UKRAINE." Social & Legal Studios 12, no. 2 (June 30, 2021): 113–20. http://dx.doi.org/10.32518/2617-4162-2021-2-113-120.
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Introduction. In spite of definitude of the concept of public official directly in Criminal Code of Ukraine, its definition makes many difficulties. As the result there is an absence of the only approach concerning interpretation of context and amount of the concept in theory as well as ambiguous applying of relevant criminal and legal norms in enforcement practice. Purpose. The purpose of the article is to find out the subject matter of public official, as well as preparation of improvement of definition of the public official notion in criminal legislation. Results. Persons, that implement functions of a representative of authority or local self-administration, should also be referred as persons empowering the rights from state and its bodies; municipalities, bodies of local self-government make demands and solve problems, which are necessary for implementation by external respondents (entities, that are not subordinate by position and legal entities) and also implement from state, its bodies, bodies of local self-government enforcement measures in case of violations of legal norms. Organizational and regulatory functions should be exclusively considered as functions of administration working with employees that are implemented by person’s availability to make orders, instructions, commands, take encouragement and penalty measures referring to them. Administrative and economic functions should be perceived as functions of administration or disposal of other people’s property. Conclusion. Based on the research the author suggests to apply the defined term of public official instead of terms "an individual fulfilling functions of representative of authority or local self-government" "organizational and regulatory function" and "administrative and economic functions", terms "an individual empowered fulfilling state functions or local self-government", "functions concerning administration of work with employees" and "functions of administration and disposal of other people’s property" accordingly.
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Ristić, Katarina. "The Media Negotiations of War Criminals and Their Memoirs." International Criminal Justice Review 28, no. 4 (April 9, 2018): 391–405. http://dx.doi.org/10.1177/1057567718766218.
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The literature on transitional justice in former Yugoslavia holds that the International Criminal Tribunal for the former Yugoslavia (ICTY) proceedings, meant to establish the facts about the past, punish the perpetrators of mass violence, and even facilitate reconciliation, have led to the unexpected transformation of convicted war criminals into heroes in their home countries. Drawing on cultural criminology, the article looks at the phenomenon of “criminal celebrity,” which emerges at the juncture between public personality, intensive media attention, and high audience resonance. Considering that this transformation largely depends on the ability of different actors, including the convicts themselves, to create socially acceptable public personalities by reframing crimes, and their contexts and perpetrators, this article looks at the attempts to create such alternative accounts in the memoirs of the convicts, and in the media. This article argues that the mediation of war criminals in the ICTY facilitated a new type of criminal celebrity—the “ICTY celebrity,” who emerges from his/her relation to an allegedly unjust legal authority, rather than to the crimes. The ICTY celebrity is not a hero, known for heroic deeds or achievements—instead, his main function is to represent a flattering and consoling narrative about the past, enabling wide identification within the ethnic community.
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Turković, Ksenija. "The Prosecution Service Function within the Croatian Criminal Justice System." European Journal on Criminal Policy and Research 14, no. 2-3 (August 1, 2008): 263–87. http://dx.doi.org/10.1007/s10610-008-9067-6.
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Róth, Erika. "The Prosecution Service Function within the Hungarian criminal justice system." European Journal on Criminal Policy and Research 14, no. 2-3 (July 24, 2008): 289–309. http://dx.doi.org/10.1007/s10610-008-9068-5.
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Aebi, Marcelo F., and Marc Balcells. "The Prosecution Service Function within the Spanish Criminal Justice System." European Journal on Criminal Policy and Research 14, no. 2-3 (August 6, 2008): 311–31. http://dx.doi.org/10.1007/s10610-008-9069-4.
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Gilliéron, Gwladys, and Martin Killias. "The Prosecution Service Function within the Swiss Criminal Justice System." European Journal on Criminal Policy and Research 14, no. 2-3 (August 1, 2008): 333–52. http://dx.doi.org/10.1007/s10610-008-9070-y.
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Hakeri, Hakan. "The Prosecution Service Function within the Turkish Criminal Justice System." European Journal on Criminal Policy and Research 14, no. 2-3 (August 7, 2008): 353–68. http://dx.doi.org/10.1007/s10610-008-9071-x.
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Kirillov, S. I., and S. V. Krivosheev. "Preventive Applications of Penal Sanctions." Pravo: istoriya i sovremennost', no. 3(12) (2020): 100–109. http://dx.doi.org/10.17277/pravo.2020.03.pp.100-109.
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The most Important areas of the preventive role of criminal law are limiting the use of punishment in the form of deprivation of liberty, determining legal compromises between the offender, the victim, society and the state, establishing an effective system of punishment, fair sentencing, which is as individualized as possible, and others. In this regard, criminal justice takes place after the commission of crime through the implementation of the preventive function of criminal law norms. Today, an urgent problem is the study of criminal law crime prevention, as a collective, complex concept that includes the possibilities of criminal and penal law. This study is devoted to the prevention of crimes by criminal law means. The paper explores the problems of manifestation of the preventive function of criminal law in the application of punishment and other forms of criminal responsibility, justifies the position on reducing the imposition of convictions with a penalty of imprisonment. The analysis of current legal acts and opinions of scientists who conducted research in this area is carried out.
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Walters, Glenn D. "Changes in Arrest Rate as a Function of Probation and Participant Criminal History Risk: Does Probation Work Best With Lower Risk Probationers?" Criminal Justice Policy Review 30, no. 5 (July 24, 2017): 748–64. http://dx.doi.org/10.1177/0887403417721605.
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The purpose of this study was to determine whether criminal history risk moderates the effect of probation on future reoffending. A sample of 327 participants from the 1997 National Longitudinal Survey of Youth (NLSY97) who had been on probation were compared with 327 propensity score matched members of the NLSY97 who had been arrested but not placed on probation. Probation and arrest data analyzed between 1999 and 2008 failed to support the presence of an overall effect for probation. When the sample was divided into higher criminal history risk (one or more prior arrests) and lower criminal history risk (no prior arrests), however, probation was found to reduce recidivism in the lower criminal history risk group but not in the higher criminal history risk group. Accordingly, probation appeared to have a small but significant ameliorative effect on future offending in lower criminal history risk offenders.
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이얼 and Seong-Don Kim. "The Meaning and Function of Sexual Self-Determination on Criminal Law." Dankook Law Riview 34, no. 2 (December 2010): 401–27. http://dx.doi.org/10.17252/dlr.2010.34.2.015.
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Aliverti, Ana. "Exploring the Function of Criminal Law in the Policing of Foreigners." Social & Legal Studies 21, no. 4 (September 10, 2012): 511–27. http://dx.doi.org/10.1177/0964663912455447.
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Sinkin, K. A., and D. A. Emelyanova. "ON THE NOTION AND THE ESSENSE OF FUNCTION OF THE CRIMINAL PROSECUTION IN THE CURRENT CRIMINAL PROCEEDINGS OF RUSSIA." Russian-Asian Legal Journal, no. 1 (March 26, 2021): 36–42. http://dx.doi.org/10.14258/ralj(2021)1.8.
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The article is devoted to the analysis of the issue of the concept and essence of the functions of criminalprosecution. According to author's opinion criminal prosecution in the modern criminal proceedings inRussia is carried out in the function of prosecution. Criminal prosecution is an activity stipulated by thecriminal procedure law for executive state body to carry out searching a person who has committed a crimefor the subsequent a fair sentence. The essence of criminal prosecution consists of the activities of state bodiesand officials aimed at establishing the circumstances to be proved in a criminal case as well as the adoptionof criminal procedural decisions in the course of this activity.
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Mejía-Lemos, Diego. "Custom in General International Law and International Criminal Law: A Survey of Selected Issues." International Criminal Law Review 20, no. 5 (September 3, 2020): 805–40. http://dx.doi.org/10.1163/15718123-bja10025.
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Abstract This article surveys selected decisions of international criminal courts and tribunals, and related literature, examining custom from a general standpoint. This article considers the place and nature of custom, with a particular focus on challenges levelled against custom’s suitability in international criminal law. This article also analyses custom’s ‘structure’, and, more specifically, the application of the ‘two-element approach’ by international criminal courts and tribunals. This articles then discusses claims that international criminal courts and tribunals engage in sui generis customary law-making, and revisits the distinction between custom in foro and in pays, examining that distinction’s pertinence to assessing such claims. Having emphasised the influence of general international law on international criminal law, this article lastly reverses its focus, and addresses custom’s wider functions as source for rules on custom’s identification and, more generally, other sources’ recognition, showing how some decisions of international criminal courts and tribunals elucidate those wider functions.
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Nasonov, A. A. "CRIMINAL PROCEDURE FUNCTIONS AND POWERS OF THE PROSECUTOR AS FACTORS DETERMINING THE SPECIFICS OF PROSECUTOR's SUPERVISION IN PRE-TRIAL PROCEEDINGS." Bulletin of Udmurt University. Series Economics and Law 31, no. 1 (February 12, 2021): 124–32. http://dx.doi.org/10.35634/2412-9593-2021-31-1-124-132.
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The article analyzes the opinions of scientists expressed during the scientific discussion that unfolded around the issue of criminal procedure functions of the Prosecutor in pre-trial proceedings. Provides additional arguments in favor of supervision of execution of laws as the main function of the Prosecutor under the Law on the Prosecutor determines other types of prosecutorial activities (criminal prosecution, the preliminary investigation, etc.) that are supportive in nature. These types of Prosecutor's activities are not only ways to specify Prosecutor's supervision in criminal proceedings, but also means of implementing the criminal procedure function of the prosecution, which exists according to the concept of the current criminal procedure legislation of the Russian Federation, focused on the adversarial process, along with the function of protection and the function of resolving criminal cases. The article also addresses the issue of granting additional powers to the Prosecutor in pre-trial proceedings. It is proved that the decision to grant additional powers to the Prosecutor in pre-trial proceedings should create opportunities to maintain the necessary balance in pre-trial proceedings between Prosecutor's supervision, departmental control and judicial control. Evidence is given that the harmonious existence of Prosecutor's supervision and departmental control in pre-trial proceedings will allow us to count on overcoming existing violations of the law in the investigation of crimes, which currently remain many.
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이승호. "A Study on the Relation between the Diversification of Criminal Sanctions and the Function of Criminal Law." Journal of Criminal Law 24, no. 3 (September 2012): 63–93. http://dx.doi.org/10.21795/kcla.2012.24.3.63.
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Seong-Don Kim. "Function of the normal social rules clause of Korean Criminal Code and the task of Criminal Law." SungKyunKwan Law Review 24, no. 4 (December 2012): 247–85. http://dx.doi.org/10.17008/skklr.2012.24.4.009.
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Isaenko, V. N. "Public Prosecution in the System of Criminal Procedural Functions." Actual Problems of Russian Law, no. 1 (January 1, 2019): 183–93. http://dx.doi.org/10.17803/1994-1471.2019.98.1.183-193.
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The paper discusses the concept and types of criminal procedural functions, analyzes the points of view of legal scholars who at various times formulated the corresponding definition. According to the author, the semantic content set by the legislator is set forth in Art. 5 of the Criminal Procedural Code of the Russian Federation is an important contribution to the improvement of the conceptual apparatus of criminal procedural law; it is intended to ensure uniformity of interpretation of the concepts they designate and, consequently, uniformity of action of the relevant criminal procedure institutions. At the same time, the Criminal Procedural Code of the Russian Federation has no definition of the concept of criminal procedure function. Based on the analysis of the norms of the Criminal Procedural Code of the Russian Federation and the opinions of jurists who expressed opinions on the concept of the criminal procedure function, it is proposed to include an additional clause in Art. 5 of the Criminal Procedural Code of the Russian Federation that would contain this concept in the proposed edition of the author. It is also proposed to divide the criminal procedural functions into two groups in connection with their performance by the participants of the criminal process both at the pre-trial and at the trial stages. The opinion is expressed on the independent nature of the function of assisting criminal proceedings carried out by its other participants, referred to in Ch. 8 of the Criminal Procedural Code of the Russian Federation. The content of the function of supporting public prosecution as a form and stage of criminal prosecution and its place in the system of other criminal procedure functions are analyzed. The author proposes a definition of the concept of public prosecution, which is considered as a necessary element and at the same time as a special form of the function of the prosecution in criminal proceedings. This activity differs significantly in terms of tasks, subject and conditions of execution from the accusatory activities of the investigating officer, investigator, body of inquiry in pre-trial proceedings.
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Husak, Douglas. "The Price of Criminal Law Skepticism." New Criminal Law Review 23, no. 1 (2020): 27–59. http://dx.doi.org/10.1525/nclr.2020.23.1.27.
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A growing trend in philosophical commentary about penal justice is what I loosely call “criminal law skepticism.” The scholarship I have in mind does not simply urge caution or a more judicious use of the criminal law to address social problems. Instead, its thrust is more sweeping and radical; it presents reasons to doubt that the criminal law as presently constituted should continue to exist at all. I make no concerted effort to categorize the several varieties or motivations for this trend; their forms and underlying rationales are diverse and frequently humane. No single argument can refute them all. Instead, I respond by describing the price that might be incurred if these skeptics were to achieve their objective. I list ten valuable functions served by the criminal law as it currently exists, several of which are too seldom appreciated in philosophical commentary. No case for criminal law skepticism is complete unless efforts are made to explain how alternatives to the criminal law can achieve these functions or afford to dispense with them.
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Nimaga, Salif. "An International Conscience Collective? A Durkheimian Analysis of International Criminal Law." International Criminal Law Review 7, no. 4 (2007): 561–619. http://dx.doi.org/10.1163/156753607x241238.
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AbstractThis socio-legal approach to international criminal law is informed by the writings of Émile Durkheim, one of the founding fathers of (legal) sociology. On the basis of a comprehensive review of primary sources and recent developments in secondary writings, Durkheim's understanding of criminal law and its sanctioning process are reconstructed. From this perspective the international criminal justice system is analysed both directly and indirectly. The first is a sociological interpretation that perceives international criminal law as being rooted in the cult of the individual. The second brings a clarification of the function international criminal tribunals perform and concludes that this cannot be adequately appraised with regard to effects on individuals or nation-states but only with regard to an emerging global society. This highly original investigation is a demonstration of the enduring relevance of Durkheim's oeuvre and a contribution to the developing diversification of theoretical perspectives on international criminal law.
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Albini, Joseph L., R. E. Rogers, Victor Shabalin, Valery Kutushev, Vladimir Moiseev, and Julie Anderson. "Russian Organized Crime: Its History, Structure and Function." Journal of Contemporary Criminal Justice 11, no. 4 (December 1995): 213–43. http://dx.doi.org/10.1177/104398629501100404.
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In analyzing Russian organized crime, the authors describe and classify the four major forms of organized crime: 1) political-social, 2) mercenary, 3) in-group, and 4) syndicated. Though the first three classifications of the aforementioned types of organized crime existed throughout Soviet history, it was the syndicated form that began to emerge in the late 1950's, expanding during the corrupt Breznev years (1964–82), exploding during perestroika, and reaching pandemic levels after the demise of the Soviet Union in 1991. The abrupt transformation of the Russian society from a centralized command economy to one driven by the forces of market capitalism created the socio-pathological conditions for the malignant spread of mercenary and especially syndicated organized crime. New criminals syndicates were created by an alliance of criminal gangs/groups and former members of the Soviet Union's communist nomenklatura (bureaucracy) and the consequence was the criminalization of much of the Russian economy. The social structure of these syndicates is based on a loose association of patron-client relationships rather than a centralized hierarchical system; their function is to provide illicit goods/services desired by the people. The authors conclude their study by emphasizing that what has taken place in Russia is not peculiar to the Russian people, but exemplifies what can happen to societies that experience rapid and intense social change.
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Blinov, A. G., and М. М. Lapunin. "Limits of Criminal Law Intervention in Human Genome Research." Вестник Пермского университета. Юридические науки, no. 50 (2020): 804–31. http://dx.doi.org/10.17072/1995-4190-2020-50-804-831.
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Introduction: the unprecedented successes of genetics have created a clear need to specify the limits of intervention of criminal law in relations associated with research into the human genome. When addressing this issue, it is essential to take into account not only the advantages that genetic engineering offers to mankind but also the threats posed by the technologies in question. Purpose: to determine the potential limits of criminal law interference in relations associated with the study of the genome. Objectives: to classify the limits of criminal law intervention, to identify the forms of socially dangerous behavior to be criminalized; to differentiate between the protective functions of criminal and administrative legislation in relation to the category of offenses under consideration; to designate areas that are off-limits to criminal law interference. Methods: both general and specific scientific methods were used, including dialectic, deduction and induction, content analysis, comparative legal method, statistical method, questioning, interviewing. Results: the limits of intervention within the protective function of criminal law have been analyzed based on five grounds, and none of the listed limits has been found to be properly defined for the field of genetic research. Based on five aspects of the manifestation of the genome in legal relations, the paper outlines the possibilities for improving the Russian criminal law taking into account the protection of each of the aspects. The accent on criminal law in the corresponding area of legal policy appears to be unacceptable. However, it is important to designate several socially dangerous acts affecting relations in the field of genetics as those that should be criminalized. On the other hand, in the interest of progress in genetic research, there is a need to actively develop the institute of circumstances excluding criminality of an act. Conclusions: the formation of temporal, spatial, subjective, substantive and interbranch limits of criminal law intervention in the human DNA research will allow geneticists to more accurately determine the reference points of scientific research, to channel their efforts exclusively into creative and constructive work, and will make it possible for all the interested parties to be more active in providing organizational, financial and scientific assistance for such researchers.
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Eldar, Shachar, and Elkana Laist. "THE MISGUIDED CONCEPT OF PARTIAL JUSTIFICATION." Legal Theory 20, no. 3 (September 2014): 157–85. http://dx.doi.org/10.1017/s1352325214000123.
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Despite the fundamentally binary character of justification (an act is either right or not, permissible or impermissible), an upsurge in recent Anglo-American scholarship offers some highly sophisticated and widely diverging conceptions of “partial justification” in criminal law. In the present article we identify eight distinct conceptions of partial justification. We find, however, that each of them is predicated on a different conceptual fallacy. Any sound concept of partial justification in criminal law ought to meet the dual challenge of utility and consistency: it should usefully convey a message that advances the conduct-guiding function of criminal law and retain some consistency with the key attributes of complete justification, particularly its allowing function and the implications of its typically universal nature. We maintain that none of the conceptions offered to date meets this challenge. The different meanings attached to partial justification do not further the guiding function of criminal law beyond what is achieved by the scalar concept of wrongfulness; indeed, they undermine the guiding utility of criminal law by obscuring the distinction between the permissible and the impermissible, thereby also diminishing the expressivity of the criminal conviction. Furthermore, extending partial universality to the proposed notions of partial justification implausibly marks retaliating victims and intervening third parties, who react to allegedly partially justified conduct, as partly blameworthy, whereas present legal doctrine rightly affords them a full defense.
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Zuckerman, A. A. S. "The Protection of the Accused from Miscarriage of Justice." Israel Law Review 31, no. 1-3 (1997): 590–611. http://dx.doi.org/10.1017/s0021223700015417.
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The criminal trial system is regarded as standing at the pinnacle of the state's machinery for dealing with crime. But the courts deal with only a small proportion of crimes committed. Their function is more indirect: to express societal disapproval through a public and somewhat theatrical show. This is not to denigrate the role of the courts or dismiss it as futile. The criminal trial does have important functions in the development of norms for criminal responsibility and in fostering respect for the law. But its success in this regard hinges on the extent to which it is perceived as a just and effective method for dealing with those charged with crime. Put crudely, the success of the criminal justice system turns in large measure in the success of the show it puts on. But theatre is good only for as long as it is able to carry the audience with it, which, in the case of the courts, this means as long as the public is prepared to accept their verdicts at face value.
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Dyson, Matthew. "Connecting Tort and Crime: Comparative Legal History in England and Spain since 1850." Cambridge Yearbook of European Legal Studies 11 (2009): 247–88. http://dx.doi.org/10.1017/s1528887000001609.
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Abstract This chapter explores the relationship between tort law and criminal law. In particular it tracks one line of developments in the procedural co-ordination of criminal and civil law: the ability of criminal courts to award compensation for harm. It is a study of legal change or development: how and why law has evolved from the middle of the nineteenth century through to the present day. The chapter is also comparative, looking at the English and Spanish legal systems. The history of powers to compensate has highlighted two fundamentally different ways to resolve claims based on a concurrently tortious and criminal wrong. The English system has slowly moved from disparate and piecemeal provisions to a general if under-theorised system. On the other hand, Spain created a novel and complete system of liability to be administered by the criminal courts. This chapter seeks to trace and explain this development with a view to understanding how much civil and criminal law can perform the same function: compensation.